Hot on the heels of the general election outcome, this article sets out the likely new Conservative party immigration policies and rules for the finance sector. In particular, it focuses on the impact of Brexit and the intention for the UK to have a new post-Brexit immigration system. For the finance sector, the outlook is generally positive and although uncertainty remains and hoops will have to be jumped through, the new rules and systems should not be overly onerous. Care still needs to be taken though, especially in terms of prevention of illegal working.
Brexit-related immigration changes in the finance sector
Given the UK, and particularly London, remains a central hub across Europe for the finance sector, free movement of people is of vital concern to the industry. Whether it is staff travelling between London – Paris – Frankfurt for business meetings or work, careful consideration needs to be given to the changes to the UK immigration system. The Conservative government has already implemented a system to change EU citizens’ rights to be in the UK from EU to UK law and, for the finance sector, it should be fairly smooth running.
Now that we know there is a Conservative majority, we have more certainty on the Brexit-related rules to be applied to EU citizens working in the UK. Effectively, at least until the end of the transition period on 31 December 2020, EU citizens maintain free movement rights in the UK and can enter at will and work in the UK. Boris Johnson fully intends for the UK to exit the EU with a deal by 31 January 2020 which would mean that EU citizens need to arrive in the UK by 31 December 2020 in order to be able to apply to register under the EU Settlement Scheme (the Scheme). The Scheme has generally been well received and very few applications have been refused. The basis of the application is that the applicant is resident in the UK and does not have a serious criminal conviction. For those EU citizens arriving in the UK by 31 December 2020, the deadline for an application under the Scheme is currently 30 June 2021.
The withdrawal agreement has provision for the UK to ask before 1 July 2020 for an extension to the transition period of one or two years. However, it appears that Boris Johnson intends to legally prohibit the government from agreeing to an extension of the 11-month transition period.
Should the UK be unable to agree on a future relationship with the EU, there of course remains the chance that the UK could leave without a deal as early as 31 December 2020. The UK has already notified of planned immigration rule changes should the UK leave with no deal, to include EU citizens arriving after that point having the option to apply for a three-year visa called European temporary leave to remain. They would then be required to extend their stay as part of the new post-Brexit immigration system.
Future post-Brexit immigration system plans
Over recent years we have seen the Conservative party’s immigration policies move from what was called a “hostile environment” to a “compliant environment”. Such an approach led in part to FCA regulated institutions needing to check the immigration status of their new customers. As part of the Conservative party manifesto, Boris Johnson guaranteed the UK would have an Australian-style Points Based System (PBS), despite the independent Migration Advisory Committee (MAC) being due to report next month on whether it is suitable for the UK. Plus, the UK has already had a PBS since 2008, including Tier 2 which is widely used within the finance sector to sponsor skilled workers in the UK.
The new system is likely to include Tier 2 or a very similar category. Salary bandings in Tier 2 have long been used as part of the UK immigration system as a measure of whether a role is sufficiently skilled. Given the higher than average salaries within the finance sector, we would not envisage that the rule changes would have a significant impact. The Home Office has a particular Tier 2 category for “high earners” where the applicant is earning over £159,600, meaning there is no need to test whether there is a resident worker who is suitable for the role or enter the monthly quota. Likewise, for those who are entering the UK on an intra-company transfer basis, the five-year limit on staying in the UK is extended to nine years if the salary is over £120,000. As such, the finance sector is well placed in terms of taking advantage of beneficial rules based on higher salary levels. That said, back office and regional staff may be affected by salary bandings and applications for them under the new post-Brexit immigration system may not be feasible. Plus submitting Tier 2 applications and for EU citizens with the associated costs and compliance will be troubling.
Pitfalls to watch out for
Where employers hold a Sponsor Licence the Home Office will attend at their offices to check immigration compliance. A key feature of that audit is whether the company has sufficient policies in place to prevent legal working and if it has all documentation in place. Where there are breaches, a civil penalty of up to £20,000 per worker can be issued or, in the worst cases where there is reasonable cause to believe the employer knew the individual did not have the right to work, criminal prosecution is a possibility. As a result of immigration offences, there is a possibility for disqualification of company directors and potentially issues in terms of FCA regulation. As part of the services that we provide to our clients, we give them a mock audit and compliance training to prepare them fully for the Home Office visit. We also regularly attend our client’s offices when the Home Office is due to visit for an audit.
From a right to work perspective, EU citizens arriving in the UK up to 1 January 2021 do not need to be distinguished. This makes it easy for employers to simply check the EU citizen’s passport or National ID Card up to that point. However, beyond that date (if there is no further transition period) employers will need to decipher whether or not an EU citizen arriving in the UK is coming in for permitted business visitor activities or is working. Given the movement of people between European offices within the finance sector, that could cause headaches for HR staff in the UK.
About the author
Ilda de Sousa is a partner in the immigration team at Kingsley Napley. She is a South African qualified attorney and a British qualified solicitor with more than ten years of UK corporate immigration law experience, managing large company clients as well as handling complex matters for individuals, British nationality applications, appeals, judicial reviews and applications under European Law including Brexit related advice. She also has extensive knowledge and experience in all aspects of the Points Based System and in advising investors, entrepreneurs and high-net worth individuals.
Ilda de Sousa
Latest blogs & news
The 22nd June is now officially the day we “celebrate” Windrush. As I have written previously, it’s also to recognise the catastrophic mistake made by the government when they wrongly denied people the right to stay in the UK. The Windrush Report was commissioned to investigate how the immigration services managed to make such a huge mistake and gave recommendations with a view to those mistakes not happening again. I would argue that the government doesn’t seem to have incorporated the recommendations from the report, which is incredibly disappointing.
Supporting Ukraine: Kingsley Napley is organising a Ukrainian lunch to support British Schools and Homes for Ukrainians
It has now been over two months since Russia launched its military invasion of Ukraine. Since then, thousands of people have died, towns and cities have been destroyed and 13 million people have been displaced. As a result, people around the World have mobilised to help in any way they can and Kingsley Napley also wants to play its part.
Launching on 30 May 2022, the High Potential Individual (“HPI”) visa will be one of several new immigration routes introduced by the Home Office this year. Designed to attract “the brightest and best” to the UK, the HPI visa appears to form part of the Government’s wider plan to deliver an ‘elite points based system’, as announced in their ‘Build Back Better: Plan for Growth’, to ensure the UK maintains its status as a “leading international hub for emerging and disruptive technologies”.
On 24 February 2022 Russian armed forces invaded Ukraine. At the time of writing, hostilities are on going. According to UNHCR over 4 million people have fled Ukraine mainly heading west towards and into EU Member States. On 4 March 2022, the EU opened a temporary protection scheme for Ukrainians (and others who were resident in Ukraine and had to flee) using a directive which was adopted in 2001 but had never been used since. In this blog we will examine the scope of the scheme in light of both the Decision which opened it and the Commission’s operational guidelines issued a few weeks later to clarify Member States obligations. The purpose is to understand what those fleeing Ukraine can expect to receive by way of assistance in the EU and compare the UK’s scheme with it.
As Europe’s largest refugee crisis since World War II has unfolded in reaction to Russia’s invasion of Ukraine, the House of Lords has finalised its reporting stage review of the Nationality and Borders Bill.
The UK government’s so far meagre UK immigration options for Ukrainians are set out in our FAQs.
UK says it’s not all about the money. After the closure of the Tier 1 (Investor) category – what options are there for potential investors?
The Tier 1 (Investor) category was abruptly chopped out of the UK’s immigration system for new applicants at 4pm on 17 February. After previous and on-going reviews, in what appears to have been a hot-headed moment responding to political tensions with Russia, the category has been closed to new applicants. Deadlines (called ‘sunset clauses’) of 17 February 2026 for extension applications and 17 February 2028 for settlement (indefinite leave to remain) applications have also been introduced for those already holding investor status.
As we look ahead to the immigration changes on the horizon for 2022, one big expectation is an expansion of the visa routes available to those looking to work in the UK. Such changes are very welcome given the UK’s on-going demand for top talent. Among those hotly anticipated additions, the Scale-up visa stands out. Here we look at it a little closer and consider what we might expect from this visa option.
Progressive developments in immigration law have become a rare phenomenon, so the Home Office’s new policy – which halves the route to settlement for certain young people who have resided in the UK for more than half of their lives – is welcome news.
Conviction cases are ordinarily relatively straightforward for regulators. If a registrant is convicted of a criminal offence, the regulator will generally treat the fact of the conviction as proof the offence was committed – and take action to protect the public accordingly. See Achina v General Pharmaceutical Council  EWHC 415 (Admin) for an example of the difficulties registrants face when they attempt to ‘go behind’ the facts of a conviction.
With the UK Chancellor’s budget announcement tomorrow, many UK businesses will be hoping for some good news on the recruitment front to help alleviate current skills shortages across a range of industries. They are likely to get short shrift. The Government has repeatedly pushed back on requests for sector specific carve-outs to deal with post-Brexit recruitment blocks. Instead, its relentless focus has been on the much more popular and palatable high-skilled immigration, attracting the “brightest and the best” with a focus on innovation, research and technology and the exceptionally talented.
The Nationality and Borders Bill, the government’s signature piece of legislation on immigration, shows questionable priorities at a time when the UK is in the midst of a wider immigration crisis.
The Youth Mobility Scheme allows employers to access younger workers from countries such as India and Iceland for two years. With skills shortages afflicting critical sectors, now might be the time for the government to consider a youth visa agreement with the EU.
From being the centrepiece of England’s post-Covid recovery with ‘eat out to help out’, the hospitality sector is now struggling to rebuild after lockdowns, furlough and rising food prices. At the same time many restaurants, cafes and pubs are coming up against the hard realities of a post-Brexit immigration policy and discovering what it means for their business.
You have come to the end of your long immigration journey, paid thousands of pounds to UKVI to obtain permission to enter, permission to stay and then, finally, indefinite leave to remain (ILR) (also called settlement). When obtaining ILR, individuals may understandably breathe a sigh of relief – it’s over! For many who, for various reasons, choose not to naturalise or register as British, ILR can provide adequate status to live and work in the UK permanently.
The vast majority of EU, EEA, and Swiss citizens who were UK residents by the end of last year were able to apply to the EU Settlement Scheme by the 30 June 2021 deadline. Applying to the EU Settlement Scheme meant that an EU citizen could stay in the UK for the long term.
The deadline to apply to the EU Settlement Scheme (“EUSS”) was 30 June 2021. But for those who missed it – all is not lost. The Home Office will continue to accept applications from individuals with ‘reasonable grounds’ for having missed the EUSS cut-off point. In this blog, we explore what might constitute a ‘reasonable ground’ and consider the legal implications for those who have fallen short of the deadline.
The Home Office has shown efficiency and innovation in dealing with EU nationals-it now needs to show its humanity
In February 2019, shortly after the launch of EU Settlement scheme for EU nationals to apply for their UK status, my colleagues and I visited one of our global media client’s offices to present on the new EU Settlement Scheme at a town hall meeting with all of their EU national employees.
Gone are the days of computer gaming being viewed as a secluded activity; gaming is now a thoroughly social experience that attracts a global audience of millions and players can compete for large sums of money and celebrity. This burgeoning industry is largely in a virtual world and has developed in a blockchain, decentralised fashion. Often the UK government talks up the UK gaming industry and how keen the government is to support this sector, and there have been instances that show support, but when it comes to playing games competitively, law and regulations have not yet caught up.
The UK left the EU in January 2020, in accordance with the Withdrawal Agreement there has been a grace period in place since 1 January 2021 which ends on 30 June 2021. The basis of the grace period is that those EU citizens (and EEA and Swiss citizens) who were residents in the UK on or before 31 December 2020 have until 30 June 2021 to apply to the EU Settlement Scheme.